Financial Exploitation of Older Adults

18 Pages·2017·0.42 MB·English

Financial Exploitation of
Older Adults
A Guide for Civil Legal Aid Attorneys in
California

Produced by Justice in Aging with support from the California Community
Foundation.
Adapted from information from the National Center on Law & Elder Rights.
Financial Exploitation of Older Adults: A Guide for Civil Legal Aid
Attorneys in California
About This Guide
Elder abuse is a growing issue faced by older adults, and the effects of abuse can negatively impact the
physical health, mental well-being, and financial stability of victims. Elder abuse includes physical abuse,
sexual abuse, neglect, and financial exploitation. Elder financial exploitation is the most prevalent form
of abuse experienced by older adults.
While acts of elder abuse may fall under various criminal statutes, civil legal aid attorneys are uniquely
positioned to deploy legal strategies and advocacy to mitigate the effects of abuse and help older adults
attain the remedies they seek. This Guide contains state-specific information, tools, and links to
resources to help civil legal aid attorneys advise and represent clients who have experienced financial
exploitation. Additionally, the resources and partner information shared at the end of the Guide will
help you connect with community partners, prosecutors, and coalitions who are also working to prevent
and address elder abuse in your state.
This Guide was produced by Justice in Aging with support from the California Community Foundation,
and adapted from information from the National Center on Law and Elder Rights (NCLER). NCLER has
additional training and resources on a variety of Elder Abuse topics, including: Legal Basics of Financial
Exploitation, Undue Influence and Elder Abuse, Elder Financial Abuse and Medicaid Denials, and Civil
Litigation as a Remedy for Financial Exploitation. NCLER is developing a series of resources to help aging
professionals address the legal aspects of elder abuse, and all resources are available on ncler.acl.gov.
Introduction to Financial Exploitation
Financial exploitation of older adults is a prevalent and underreported problem. In California, hundreds
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of thousands of older adults experience abuse each year. Financial exploitation has many faces,
including theft, ID theft, theft of public benefits, unauthorized use of credit cards, undue influence,
deceptive and unfair business practices, and abusive debt collection practices. Financial exploitation is
enormously costly to victims’ health and economic security. Studies estimate the financial losses due to
exploitation are in the billions of dollars. For many victims, the funds lost are their entire life savings.
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Financial exploitation is frequently committed by family members, trusted friends, or caregivers.
Reporting exploitation can take an emotional toll on the person and result in a loss of caregivers or
companions.

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Elder Abuse Issue Brief, Center of Excellence on Elder Abuse & Neglect, University of California, Irvine (2013),
Available at: http://www.centeronelderabuse.org/docs/COE_IssueBrief2013_final.pdf
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Peterson, J., Burnes, D., Caccamise, P., Mason, A., Henderson, C., Wells, M., & Lachs, M. (2014). Financial
exploitation of older adults: a population-based prevalence study. Journal of General Internal Medicine, 29(12),
1615–23. doi: 10.1007/s11606-014-2946-2
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Defining Financial Exploitation
Financial exploitation is defined in the Older Americans Act as: “The fraudulent or otherwise illegal,
unauthorized, or improper act or process of an individual, including a caregiver or fiduciary, that uses
the resources of an older individual for monetary or personal benefit, profit, or gain, or that results in
depriving an older individual of rightful access to, or use of, benefits, resources, belongings, or assets.”
California’s Elder and Dependent Adult Civil Protection Act (EADACPA) also provides a definition of
elder financial exploitation:
(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any of the
following:
(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or
dependent adult for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of
an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting,
appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult
by undue influence, as defined in Section 15610.70.
(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained
property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates,
obtains, or retains the property and the person or entity knew or should have known that this conduct is
likely to be harmful to the elder or dependent adult.
(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real
or personal property when an elder or dependent adult is deprived of any property right, including by
means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property
is held directly or by a representative of an elder or dependent adult.
There are differing ways of categorizing types of financial abuse and exploitation, and the boundaries
between them can be blurry, but one simple distinction divides financial exploitation into two types:
those by a “known” person and those by a “stranger”:
• Known person: Financial abuse/exploitation by a known person (a family member, close friend,
caregiver, or person/organization in a position of trust) who breaches the trust between a
vulnerable person and misuses the individual’s funds to serve their own needs at the elder’s
expense. Attorneys should be mindful of the distinction between family and non-family
perpetrators, and how that can inform your approach to the matter. Remedies for these kinds of
abuse are both civil and criminal.
• Stranger or “new friend”: Fraud, misrepresentation, or scams by a stranger or “new friend” who
deceives the vulnerable person via an ever-changing variety of con games, such as bogus
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lotteries, sweetheart swindles, grandparent scams, fake charities, home repair fraud, IRS back
taxes schemes, gift card scams, identity theft, etc.
This Guide focuses primarily on civil legal remedies for “known person” financial exploitation, but you
can utilize the practice tips at the end of this Guide to assist your clients who have experienced stranger
financial exploitation or scams.
The Role of Attorneys in Preventing & Addressing Financial Exploitation
Civil legal remedies can provide valuable relief to older adults, including stopping ongoing abuse and
obtaining restitution. Civil legal services programs are also generally equipped to handle the associated
legal issues discussed in this Guide, such as Medicaid, housing, and consumer issues. Some of your
clients may not want to pursue criminal charges against a family member or friend, but are willing to
explore their civil options. Additionally, some cases may not have the elements necessary for criminal
prosecution. Civil legal remedies may be helpful whether or not a criminal prosecution is pursued. As a
civil legal aid attorney, you can play an important role in the protection and recovery process by
assisting with obtaining protection orders, recouping funds, and other civil remedies that are addressed
in this Guide.
Interviewing & Important Ethical Considerations
Trauma-Informed Legal Advocacy
Older adults who have experienced maltreatment are at risk of further harm if their legal matter is not
handled in a trauma-informed manner by their advocate. Learning how to provide trauma-informed
lawyering will help your client in their recovery process and also allow you to get more thorough
information from your client in order to effectively represent them.
The family versus non-family distinction is important for advocates to recognize. The sensitivities
involved with a family member perpetrator should inform the conversation between you and your
client, and the trauma-informed lawyering tips in this Guide are especially helpful in this context.
Additionally, a victim may be willing to pursue certain remedies against a non-family exploiter that they
may be reluctant to consider if the exploiter is related.
Traumatic triggers can impact your ability to connect with your client. Triggers bring up the memory of a
past event and may create a feeling of unease or fear. Each client’s experience and triggers will be
different, so it is important that you understand the various options that are available to make your
client feel more comfortable. Providing options for the interview location, being careful to explain the
process of the interview in advance, and taking breaks can all be beneficial when conducting a legal
interview. If your client will have to go to court, you should be mindful of the triggers that they may
face, particularly if they will encounter the perpetrator of abuse. A run-through of the day can be
helpful, as well as arranging for a supportive friend or family member to be present. For practice tips
and more information about trauma-informed lawyering, resources are available through the Trauma-
Informed Legal Advocacy (TILA) Project.

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Mandated Reporter Policy
In California, lawyers are not specifically designated as mandatory reporters of elder abuse. The statute
defines mandated reporters in the California Welfare & Institutions Code § 15630(a), within the
EADACPA:
“(a) Any person who has assumed full or intermittent responsibility for the care or custody of an elder or
dependent adult, whether or not he or she receives compensation, including administrators,
supervisors, and any licensed staff of a public or private facility that provides care or services for elder or
dependent adults, or any elder or dependent adult care custodian, health practitioner, clergy member,
or employee of a county adult protective services agency or a local law enforcement agency, is a
mandated reporter.”
The full statute can be found in the California Welfare & Institutions Code § 15630.
However, if you have reason to believe that your client has experienced abuse, you have the option of
permissive reporting to Adult Protective Services if your client consents to the report. Permissive
reporting should be weighed carefully with your client. Under the California Rules of Professional
Conduct, Rule 1.4, you must explain a matter “to the extent reasonably necessary to permit the client to
make informed decisions.” This includes explaining to your client what would happen next, including
services that may become available to them, possible criminal charges against the abuser, the potential
for a guardianship investigation and capacity assessment, and more, including possible negative
implications. Reporting elder abuse to Adult Protective Services can result in a case worker investigating
the report, which could include a home visit and other actions that your client may not be comfortable
with. A complete understanding of the impact and potential benefits and detriments of reporting will
help you advise your clients on permissive reporting and weigh the benefits and burdens of taking this
action.
As an attorney, you will need to assess your reporting obligations and ethical duties, and then be clear
with your clients about your obligations and confidentiality during initial interviews and subsequently if
necessary. The California Department of Social Services offers an online training on reporting
responsibilities entitled, Mandated Reporting: Elder and Dependent Adult Abuse and Neglect in
California. The California State Bar’s Ethics Hotline provides free consultations on ethical questions,
such as the disclosure of confidential information.
Capacity Concerns
Diminished capacity is a risk factor for exploitation, and because you will likely represent clients with
capacity issues, you need to understand your ethical obligations. California’s Rules of Professional
Conduct do not have a rule that specifically addresses a lawyer’s responsibilities in representing clients
with diminished capacity. However, California’s Ethics Opinions from the state bar may offer guidance
on specific issues related to capacity. Additionally, the ABA’s Model Rules of Professional Conduct
(MRPC) 1.14 may be instructive. It starts with a presumption of capacity, and directs attorneys to
maintain a normal attorney-client relationship when reasonably possible.
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Capacity is not an on/off switch, and the standard of capacity will vary, depending on the nature of the
decision that your client is required to make. Capacity levels may change during your period of
representation and you must be cognizant of how duty to your client may be affected as this occurs.
State statutes provide the standards of capacity for specific legal transactions and guardianship.
California Probate Code §§ 810-813 (Part 17) defines legal capacity for acts, including entering a
contract, making conveyances, making medical decisions and executing planning documents.
• Testamentary Capacity: California Probate Code § 6100.5
• Contractual Capacity: California Civil Code § 39
• Medical Decision Capacity: California Probate Code § 813
To help you address issues of capacity and ethics in your cases you can reference NCLER’s webinar
training and accompanying guide that includes in-depth information and a 4-page worksheet to screen
for incapacity.
Capacity determinations call into play the sometimes competing goals of preserving autonomy and
promoting protection. Attorneys should consider certain factors such as grief, stress, and non-
permanent medical conditions when assessing a client’s capacity to make decisions. These are all factors
that could be present for your client who has experienced abuse, and they are part of trauma-informed
lawyering.
Screening
Sometimes your client will come to you seeking help to end or recover from an abusive situation.
Perhaps more frequently, however, you may also discover that someone is the victim of abuse in the
course of representing them in another matter. Your legal services program should have a system in
place for screening for financial exploitation and other forms of elder abuse.
The signs and symptoms of elder abuse can be detected in all practice areas. Elder financial exploitation
cases do not always present as elder abuse. The older adult who comes in for help with utilities, rent or
a consumer debt lawsuit may be struggling to pay her bills because she has been financially exploited.
Or, an older adult may be facing eviction because of an abusive adult child who refuses to leave the
home.
If elder financial exploitation is suspected, reviewing a client’s bank account activity, credit card
statements, other bills, budget, and any accountings that are available may help you identify problems.
The Elder Investment Fraud & Financial Exploitation Prevention Program has developed a financial
exploitation checklist and screening tool that may be helpful.
Below are some examples of how an elder abuse case might initially present in your office. These
situations may not always involve abuse, but could raise red flags and prompt further investigation:
• A client is being encouraged to sign legal documents that they do not understand.
• A client is being evicted from a nursing facility due to non-payment, and a family member
manages their finances.
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• A client is seeking to modify their advance planning documents in an unusual way.
• A client is facing mortgage foreclosure, but has adequate income to pay the mortgage.
• A client has a reverse mortgage, but did not understand the documents and did not have access
to the funds.
• A client is being sued for a credit card debt, but they did not open the account or use the credit
card.
• A client is being evicted from their apartment for a violation of the housing authority’s guest
policies.
• A client comes in for an appointment, and is accompanied by a coercive or overbearing family
member or friend.
For more guidance on screening for elder abuse and other legal issues faced by older adults, utilize
NCLER’s skills training session on Issue Spotting, Intake, & Referrals which provides practical tips and
visual guides for attorneys and support staff.
Legal Strategies
When exploring the strategies in this section, you should keep in mind that some filing fees may be
waived based on indigence. Although some filings for court actions may be available for free (such as
certain restraining orders or a change of guardian), others may require a filing fee. This is especially
important when an exploiter has deprived the elder of funds, or controls access to the funds.
In California, a filing fee waiver may be requested using form FW-001. There are several ways that your
client could qualify for a waiver:
• If they are currently receiving public benefits, such as Medi-Cal, food stamps, SSI, CalWorks,
Tribal TANF and others; or
• If their income amounts are less than the amounts listed on section 5b of FW-001; or
• The court finds that they cannot afford their basic household needs and the court fees.
The California Courts website provides more detailed information on filing fee waivers.

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Immediate Responses for Protection
There are certain options that you should consider and discuss with your client if they need protection
from the perpetrator and immediate help to stop the abuse

Your Client Potential Why this Action for this Practice Tips & Statutes
Wants… Steps to Take Situation?
To stop the Seek an Elder Protective orders, restraining orders, California’s Elder and Dependent Adult Civil
perpetrator from Abuse or stay away orders are civil orders Protection Act (EADACPA) provides the
contacting them Restraining from the court telling the perpetrator elements and procedure for seeking a
or coming to Order or not to contact your client, approach Protective Order for an older adult who has
their home Domestic them, or harm them again. While the experienced abuse as defined by the statute.
Violence order is civil, if the perpetrator Generally, the elements are as follows:
Restraining violates it, they could face criminal
• The client must be 65 or older, or be
Order consequences.
between 18 and 64 and have certain

mental or physical disabilities that

keep them from being able to do
normal activities or protect yourself;
and
• Is a victim of physical or financial
abuse, neglect or abandonment,
treatment that has physically or
mentally hurt them or deprivation
(withholding) by a caregiver of basic
things or services you need so you will
not suffer physically, mentally, or
emotionally.
Note: For elder and dependent adult protective
orders, an Emergency Protective Order (EPO) is
not available if the ONLY type of abuse is
financial abuse. See CA Family Code § 6250(d).
Older adults under 65 who are not considered
dependent adults who have experienced
abuse may also be able to obtain a Domestic
Violence Restraining Order in situations where
the person is a spouse, partner or relative.
Advocates can also see if a Civil Harassment
Restraining Order is appropriate.
California Courts' website provides
information about obtaining protective orders
and restraining orders, including links to the
necessary forms.
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To get the Eviction or If the perpetrator currently lives with The protective orders and restraining orders
perpetrator out Ejectment or a your client, it may be necessary for detailed above may be used to compel the
of their home move-out order you to help your client legally evict perpetrator to move out of the home of the
pursuant to a the perpetrator. older adult. If the older adult requires an
restraining immediate move-out, they will have to allege
order violence or threats of violence and their right
to live in the residence.
California Courts’ website offers guidance and
forms for eviction proceedings where a
traditional landlord-tenant relationship exists.
Practice Tip: If your client is in immediate
danger by staying in the home, you should
look at shelter options, including any elder
shelter networks in your area. California’s new
HomeSafe program seeks to prevent evictions
and homelessness in instances of elder abuse.
Local APS offices may be able to provide more
specific information about the availability of
elder shelter options.

Practice Tip: if your client does not want to
seek immediate court relief, for example,
against a family member, a certified letter
from an attorney demanding that the person
vacate the premises and stop any act of
financial exploitation, with a specified move
out date, can provide relief in some situations.
To stop money Pre-Judgment A pre-judgment attachment can put a Authorization for the issuance of a pre-
and/or property Attachment hold on the perpetrator’s assets and judgment attachment in elder abuse cases is
from continuing prevent sales/transfers or hiding found in CA Welfare & Institutions Code §
to be spent, sold and/or assets while the civil matter is 15657.01. Generally, the court will award a
or accessed by pending. This may help your client pre-judgment attachment when:
the perpetrator Freeze of Bank recover more of the stolen funds if a
• The claim made is one upon which an
Account/ judgment is awarded.
attachment may be issued.
Removal of
• Probable validity of the claim that
Perpetrator’s If the perpetrator has access to your
attachment is based on has been
Name from client’s bank account or has been
established.
Bank Account utilizing your client’s checks or debit
• There is no other purpose for the
card, you may want to help your
attachment other than recovery on
client take steps to freeze their
the claim. The amount to be secured
account from any further
by the attachment is greater than
withdrawals and possibly advise
zero.
them to open a new account.
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California Government Code §7480 (b)
provides law enforcement (including APS) with
access to account activity information and
records when a crime report has been filed.
When working with law enforcement
advocates, this could be a helpful tool for civil
legal aid attorneys to obtain information
about their client’s account activity.

Practice Tip: Your client may have automatic
deposit of their Social Security, pension and
other income in their current account. You will
want to help them with arrangements to
change the account information on the direct
deposits.

To stop their Revocation of Revoking a power of attorney Information on the modification and
agent from Power of document can be a helpful first step revocation of Powers of Attorney is in CA
misusing a Attorney to stop the perpetrator from Probate Code §§ 4150-4155. See also, the
power of continuing to exploit your client while “Action for an Accounting” remedy in the
attorney using the document. Redress section below for removing an agent
document or not when there is breach of fiduciary duty.
fulfilling their Legal capacity is required to exercise
fiduciary this option. Also, consideration must Practice Tip: Be sure to send the revocation
obligations be given to the client’s ability to and any new POA documents to the banks and
handle their own finances and other other institutions that may have a copy of the
options/potential agents who can previous POA document.
step in to replace the perpetrator.
To change their Termination or If your client has a conservator who is In California, information on grounds and
conservator Change of guilty of misconduct, such as process for removing a conservator is in the
because the Conservator committing elder abuse, the court Probate Code. Grounds for termination
current has the discretion to remove the include “continued failure to perform duties,”
conservator is conservator and appoint a new “gross immorality,” and “any other case in
misusing funds conservator. which the court in its discretion determines
or taking their that removal is in the best interest of the ward
property or conservatee.”
Practice Tip: Review the ABA’s PRACTICAL
Tool for Lawyers for assistance in determining
whether your client should be considered for
less restrictive options than conservatorship.

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